Opinion
Civil Action 21-331
10-26-2021
FREDERICK COOPER HARRIS, III, Petitioner, v. THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA, Respondent.
REPORT AND RECOMMENDATION
MAUREEN P. KELLY UNITED STATES MAGISTRATE JUDGE
I. RECOMMENDATION
For the reasons that follow, it is respectfully recommended that this case be dismissed without prejudice for failure to prosecute, and that a certificate of appealability be denied.
II. REPORT
Petitioner Frederick Cooper Harris, III, (“Petitioner”) is a state inmate currently incarcerated at the State Correctional Institution at Camp Hill (“SCI-Camp Hill”) in Camp Hill, Pennsylvania. Petitioner initiated the above-captioned matter on March 10, 2021, with the submission of a Motion for Leave to Proceed In Forma Pauperis (“IFP”) and Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody. ECF Nos. 1 and 1-1.
On March 25, 2021, this Court denied Petitioner's IFP motion because he had averred to having an income and funds sufficient to pay the $ 5.00 filing fee. ECF Nos. 1 at 1 and ECF No. 2 at 1. Petitioner paid the filing fee on April 9, 2021, and the initial Petition was filed. ECF Nos. 3 and 4.
On May 3, 2021, Petitioner was ordered to file an amended habeas petition using the Court's standard form. ECF No. 5. In that Order, Petitioner was directed to provide answers to specific questions on the form in order to provide necessary information that had been lacking in the initial Petition. Id. at 2. Petitioner submitted an Amended Petition on May 11, 2021, which did not correct the deficiencies identified in the Order of May 3, 2021. ECF No. 6.
In light of Petitioner's failure to comply with the Order of May 3, 2021, this Court issued an Order to Show Cause on July 1, 2021. ECF No. 7. Along with the Order to Show Cause, Petitioner once again was sent a copy of this Court's form habeas petition, which he was directed to complete. The deadline to respond to that order was August 2, 2021. Id. at 3. As of this date, Petitioner has failed to respond to the Order to Show Cause, or to submit an amended habeas petition that includes the information necessary to proceed.
A district court has the inherent power to dismiss a case under Rule 41(b) of the Federal Rules of Civil Procedure for a litigant's failure to prosecute or to comply with an order of court. Guyer v. Beard, 907 F.2d 1424, 1429 (3d Cir. 1990). “Under our jurisprudence, the sanction of dismissal is reserved for those cases where the plaintiff has caused delay or engaged in contumacious conduct. Even then, it is also necessary for the district court to consider whether the ends of justice would be better served by a lesser sanction.” Id.
In Poulis v. State Farm Fire and Casualty Co., 747 F.2d 863 (3d Cir. 1984), the United States Court of Appeals for the Third Circuit set forth six factors to be weighed when considering whether dismissal of a case as a sanction for failure to prosecute or to obey pretrial orders. They are: (1) the extent of the party's personal responsibility; (2) the prejudice to the adversary caused by the failure; (3) a history of dilatoriness; (4) whether the conduct of the party or attorney was willful or in bad faith; (5) the effectiveness of sanctions other than dismissal, which entails an analysis of alternative sanctions; and (6) the meritoriousness of the claim or defense. Id. at 868. These factors must be balanced in determining whether dismissal is an appropriate sanction, although not all need to weigh in favor of dismissal before dismissal is warranted. Hicks v. Feeney, 850 F.2d 152 (3d Cir. 1988). Consideration of the factors listed above is as follows.
(1) The extent of the party's personal responsibility
Petitioner is proceeding in this matter pro se, and he alone is responsible for prosecuting this case and complying with orders of this Court.
(2) Prejudice to the adversary
Respondent has not been served with a habeas petition. There is no indication that Respondent has been prejudiced unfairly by Petitioner's conduct.
(3) A history of dilatoriness
Petitioner has failed to file a habeas petition with sufficient information and has failed to respond to the Order to Show Cause. This is sufficient evidence, in this Court's view, to indicate that Petitioner does not intend to proceed with this case in a timely manner.
(4) Whether the party's conduct was willful or in bad faith
There is no indication on the record that Petitioner's conduct is the result of any “excusable neglect, ” Poulis, supra. The conclusion that Petitioner's failure is willful is inescapable.
(5) Alternative sanctions
Petitioner currently is proceeding pro se, and there is no indication on the record that the imposition of costs or fees likely would be an effective sanction.
(6) Meritoriousness of the case
Both the initial Petition and Amended Petition lack sufficient information to allow for an effective determination of the merits thereof. However, the undersigned notes that the discernable bases for relief asserted in these filings - i.e., that Petitioner enjoyed “executive privilege” and was pardoned by the Pennsylvania Supreme Court, see ECF No. 6 at 2 - are without support in either Petition.
Because at least four of the six Poulis factors weigh in favor of dismissal, dismissal is appropriate under Rule 41(b) for failure to prosecute. A certificate of appealability should be denied, because jurists of reason would not find the foregoing debatable.
III. CONCLUSION
Based on the reasons set forth above, it is respectfully recommended that this case be dismissed without prejudice for failure to prosecute, and that a certificate of appealability be denied.
In accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1), and Local Rule 72.D.2, the parties are permitted to file written objections in accordance with the schedule established in the docket entry reflecting the filing of this Report and Recommendation. Objections are to be submitted to the Clerk of Court, United States District Court, 700 Grant Street, Room 3110, Pittsburgh, PA 15219. Failure to timely file objections will waive the right to appeal. Brightwell v. Lehman, 637 F.3d 187, 193 n.7 (3d Cir. 2011). Any party opposing objections may file their response to the objections within fourteen days thereafter in accordance with Local Civil Rule 72.D.2.
Hon. Judge Marilyn J. Horan, United States District Judge